United States of America v. Javier Toshiro Tokunaga- Fujigaki

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAVIER TOSHIRO TOKUNAGA-
FUJIGAKI,
Defendant - Appellant.
No. 14-50466
D.C. No. 3:14-cr-00633-CAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Javier Toshiro Tokunaga-Fujigaki appeals from the district court’s judgment
and challenges the 48-month sentence imposed following his guilty-plea
conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
SEP 2 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and 960. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Tokunaga-Fujigaki contends that the district court erred in denying his
request for a minor role adjustment under U.S.S.G. § 3B1.2(b) by misapplying the
Guideline. We review the district court’s interpretation of the Guidelines de novo
and its factual finding that a defendant was not a minor participant for clear error.
See United States v. Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014), cert. denied,
135 S. Ct. 1467 (2015). Contrary to Tokunaga-Fujigaki’s contention, the record
reflects that the district court understood and applied the correct legal standard,
properly considered the totality of the circumstances, and did not rely on improper
factors in denying the adjustment. Moreover, the district court did not clearly err
by finding that Tokunaga-Fujigaki did not play a minor role in the offense. See
Hurtado, 760 F.3d at 1069.
Tokunaga-Fujigaki also contends that his supervised release term is
substantively unreasonable in light of his status as a deportable alien. The district
court did not abuse its discretion in imposing Tokunaga-Fujigaki’s sentence. See
Gall v. United States, 552 U.S. 38, 51 (2007). The supervised release term is
substantively reasonable in light of the totality of the circumstances, including
Tokunaga-Fujigaki’s recent arrest for a similar offense. See id.; see also U.S.S.G.

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§ 5D1.1 cmt. n.5 (supervised release for a deportable alien is appropriate if it
would provide an added measure of deterrence and protection)
AFFIRMED.

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